“The Applicant requests an order for the payment of interim disbursements in the amount of $152,657.34. The disbursements represent the estimated costs of a responding income valuation, a vocational assessment and Ms. Vohra’s costs of her lawyer conducting the arbitration, the arbitration appeal as well as the trial and questioning.
The jurisdiction for an order for interim disbursements can be found in r. 24(18) which reads as follows:
The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.
The leading case on issues of interim disbursements in Ontario remains Stuart v. Stuart, 2001 CanLII 28261 (ON SC), [2001] O.J. No. 5172 (S.C.J.) despite the fact that the case is more than 20 years old. Rogers J. decided the case and conducted a comprehensive review of the case law, determining at para. 8 of the case certain “themes” regarding cases under the then r. 24(12) (now r. 24(18)):
1) The ordering of interim disbursements is discretionary: Airst v. Airst, [1995] O.J. No. 3005 (Gen. Div.); Hill v. Hill (1988), 1988 CanLII 4710 (ON SC), 63 O.R. (2d) 618 (H.C.) and Lossing v. Dmuchowski, [2000] O.J. No. 837 (Ont. S.C.J.).
2) A claimant must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot present or analyse settlement offers or pursue entitlement: Hill v. Hill (1988), 1988 CanLII 4710 (ON SC), 63 O.R. (2d) 618 (H.C.) and Airst v. Airst, [1995] O.J. No. 3005 (Gen. Div.).
3) It must be shown that the particular expenses are necessary: Lossing v. Dmuchowski, [2000] O.J. No. 837 (S.C.J.).
4) Is the claim being advanced meritorious? Lynch v. Lynch (1999), 1 R.F.L. (5th) 309 (Ont. S.C.J.) and Randle v. Randle (1999), 1999 ABQB 954 (CanLII), 3 R.F.L. (5th) 139 (Alta. Q.B.).
5) The exercise of discretion should be limited to exceptional cases: Organ v. Barnett (1992), 1992 CanLII 7433 (ON SC), 11 O.R. (3d) 210 (Gen. Div.).
6) Interim costs in matrimonial cases may be granted to level the playing field: Randle v. Randle (1999), 1999 ABQB 954 (CanLII), 3 R.F.L. (5th) 139 (Alta. Q.B.).
7) Monies might be advanced against an equalisation payment: Zagdanski v. Zagdanski, 2001 CanLII 27981 (ON SC), 2001 CarswellOnt 2517 (S.C.J.)
She notes later in the case that the suggestion that interim disbursements only be granted in “exceptional” cases was tempered, to some extent:
The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.
In Rea v. Rea, 2016 ONSC 382, Douglas J. followed both Stuart and British Columbia (Minister of Forests) v. Okanogan Indian Band, [2003] S.C.C. 71 in suggesting the following three criteria for an award of interim disbursements and costs:
(a) The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case;
(b) The claimant must establish a prima facie case of sufficient merit to warrant pursuit; and
(c) There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.
In Rea, Douglas J. surveyed a number of cases in which interim disbursements were awarded in a range of between $100,000 to $500,000.
What is also clear from the caselaw is that a party’s case must have sufficient merit to obtain an award for interim disbursements. As stated by Rogers J., the award of interim disbursements should not give someone a license to litigate.
It is to be noted that the party who is requesting interim disbursements does not have to prove that he or she is impecunious. That party just has to show that they are incapable of funding the litigation from any other source. In Woodburn v. Woodburn, 2016 ONSC 6694, Emery J. suggested [at para. 29]:
Although the moving party need not provide evidence that she or he could not carry the case but for the financial assistance requested, the court should have evidence that there is a risk that the moving party who has a meritorious case worthy of pursuit will not have the resources to pursue the claim without that financial assistance.”